[Federal Register: May 28, 1997 (Volume 62, Number 102)]
[Rules and Regulations]
[Page 28807-28812]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my97-10]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 385

[FHWA Docket No. MC-94-22; FHWA-97-2252]
RIN 2125-AC 71


Safety Fitness Procedures; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule is being issued in response to a
decision of the U.S. Court of Appeals, District of Columbia Circuit,
entered on March 18, 1997. In this interim final rule, the FHWA is
publishing its Safety Fitness Rating Methodology (SFRM) as Appendix B
to 49 CFR 385 to be used as an interim measure until a notice of
proposed rulemaking (NPRM), published elsewhere in today's Federal
Register, becomes final. The SFRM, which is a detailed explanation of
the means by which the factors comprising a safety rating are evaluated
and calculated, will be used during this interim period only to rate
motor carriers that are transporting hazardous materials in quantities
for which vehicle placarding is required, or transporting more than 15
passengers, including the driver. This is necessary to implement the
prohibitions contained in the Motor Carrier Safety Act of 1990.

DATES: This rule is effective from May 28, 1997 until November 28,
1997. Comments must be received on or before July 28, 1997.

ADDRESSES: Submit written, signed comments to the docket number that
appears in the heading of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-
0001. All comments received will be available for examination at the
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Vehicle and
Operations Division, Office of Motor Carrier Research and Standards,
(202) 366-4009, or Mr. Charles Medalen, Office of Chief Counsel, (202)
366-1354, Federal Highway Administration, 400 Seventh Street, SW.,
Washington, D.C. 20590,. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    The FHWA promulgated 49 CFR Part 385, Safety Fitness Procedures, in
1988, to determine the safety ratings of motor carriers and to
establish procedures to resolve disputes. (See 53 FR 50961, December
19, 1988.)
    On August 16, 1991, the FHWA issued an interim final rule
implementing a provision of the Motor Carrier Safety Act of 1990,
Pub.L. 101-500, Sec. 15(b)(1), 104 Stat. 1218, 49 U.S.C. 5113,
prohibiting the transportation of passengers or placardable quantities
of hazardous materials by any motor carrier with an unsatisfactory
rating (after being afforded 45 days to improve it) (56 FR 40801). At
the same time, the agency announced that it was using the Safety
Fitness Rating Methodology (SFRM), comprised of six rating factors and
a detailed explanation of how each is calculated, to provide guidance
to

[[Page 28808]]

safety investigators in applying Part 385 during compliance reviews
(CRs) of motor carriers. The SFRM is the mechanism the agency uses to
determine how well motor carriers are adhering to 49 CFR 385.5, Safety
fitness standard. Since August 16, 1991, the FHWA has provided the SFRM
to anyone upon request. The contents of the SFRM were the subject of
requests for comments from interested members of the public in FHWA
Docket Nos. MC-91-8, published on August 16, 1991, at 56 FR 40801, and
MC-94-22, published on September 14, 1994, at 59 FR 47203. An analysis
of these comments as they are relevant to the SFRM is provided
elsewhere in today's Federal Register in a notice of proposed
rulemaking (NPRM) that proposes to make the SFRM applicable to all
motor carriers.
    The U.S. Court of Appeals, District of Columbia Circuit, recently
ruled in favor of a motor carrier which had appealed its conditional
safety fitness rating. MST Express and Truckers United for Safety v.
Department of Transportation and Federal Highway Administration, No.
96-1084, March 18, 1997. The court ruled that the FHWA had failed to
carry out its statutory obligation to establish, by regulation, a means
of determining whether a carrier has complied with the safety fitness
requirements of the Motor Carrier Safety Act of 1984, Pub. L. 98-554,
98 Stat. 2832 (codified at 49 U.S.C. 31144). Because the carrier's
conditional safety rating was determined, in part, based upon rules
that were not promulgated pursuant to notice and comment rulemaking, as
49 U.S.C. 31144(a) requires, the petitioner's conditional safety rating
was vacated and the matter remanded to the FHWA for such further action
as it may wish to take, consistent with the decision.
    The FHWA is adopting the SFRM as Appendix B to 49 CFR Part 385,
Safety Fitness Procedures, in this interim final rule. This SFRM is the
same one that has been used to rate motor carriers since October 1,
1994, with only minor editorial changes. During this interim period,
the SFRM will only be used to rate motor carriers that are transporting
hazardous materials in quantities for which vehicle placarding is
required, or transporting more than 15 passengers, including the
driver. Elsewhere in today's Federal Register, the FHWA is proposing to
use the SFRM with some further modifications, for the rating of all
motor carriers.
    To meet the legislative requirement of 49 U.S.C.
Sec. 31144(a)(1)(C), i.e., to include specific time deadlines for
action by the Secretary, the FHWA is adding a provision to 49 CFR 385.9
requiring a rating to be issued by the FHWA within 30 days following
completion of a CR.

Rulemaking Analyses and Notices

    The Administrative Procedure Act (5 U.S.C. 553(b)) provides that
its notice and comment requirements do not apply when an agency for
good cause finds that they are impracticable, unnecessary, or contrary
to the public interest. Although the FHWA is publishing an NPRM on a
modified SFRM elsewhere in today's Federal Register, the agency has
determined that the current methodology must be implemented for
particular segments of the industry immediately without prior notice
and comment because to do otherwise would be contrary to the public
interest.
    Section 5113(a) of title 49 of the United States Code provides that
a motor carrier receiving an unsatisfactory safety rating from the
Secretary of Transportation has 45 days to improve the rating to
conditional or satisfactory. If it does not, beginning on the 46th day,
the motor carrier may not operate a commercial motor vehicle to
transport either hazardous materials for which placarding of a motor
vehicle is required or more than 15 passengers, including the driver.
If the FHWA does not implement the SFRM to enable it to give
unsatisfactory ratings to motor carriers who may currently be rated as
satisfactory or conditional, the 45-day period will not be triggered
and the intent of Congress that unsatisfactory motor carriers be
precluded from transporting hazardous materials or people will not be
realized.
    Moreover, 49 U.S.C. 5113(c) prohibits any department, agency, or
instrumentality of the United States Government from using a motor
carrier with an unsatisfactory rating from transporting either
hazardous materials for which placarding is required or more than 15
passengers, including the driver. Unlike the requirements set forth in
Sec. 5113(a), however, the carrier is not given a 45-day period in
which to improve its rating; this prohibition is effective on receipt
of the rating. Without the interim final rule, the FHWA would not have
a mechanism in place to give unsatisfactory safety ratings. Therefore,
an unrated carrier could transport hazardous materials or people for
the United States Government even if the FHWA were to determine that
the carrier should be rated as unsatisfactory.
    Although the FHWA has authority under 49 U.S.C. 521(b)(5)(A) to
place out of service (OOS) all or part of a carrier's commercial motor
vehicle operations if it determines that there is an imminent hazard to
safety, the operational conditions creating the imminent hazard must be
such that they are likely to result in serious injury or death if not
discontinued immediately. That authority, however, is limited to a
determination that the imminent hazard results from a violation or
violations of provisions of Federal motor carrier safety statutes and
the Federal Motor Carrier Safety Regulations. The FHWA does not have
similar authority to place carriers OOS if it is determined that an
imminent hazard exists as a result of violations of the Hazardous
Materials Transportation Act (Pub. L. 93-633, 88 Stat. 2156, as
amended) or the Hazardous Materials Regulations. In those cases, a
civil action must be brought in a district court of the United States
pursuant to 49 U.S.C. 5122(b).
    Carriers of hazardous materials and passengers, currently rated as
unsatisfactory, could also be adversely affected by a decision not to
promulgate this interim final rule. Those carriers may have corrected
the deficiencies in their operations and seek a review to receive a
rating of conditional or satisfactory. Yet, if the SFRM were not
implemented immediately without prior notice and comment, the FHWA
would not be able to give those carriers their improved ratings. As a
result, carriers which would otherwise have been cleared to carry
hazardous materials or people would still be prevented from doing so.
This not only would be contrary to Congress' desires--49 U.S.C. 5113(b)
requires the Secretary to review the factors that resulted in the
unsatisfactory rating within 30 days of a motor carrier's request for
review--but it would place those carriers at least at a competitive
disadvantage to carriers who are currently rated as either satisfactory
or conditional or, in some cases, even those who are unrated. Moreover,
without the interim final rule, some carriers who are unable to carry
hazardous materials or people because of their unsatisfactory ratings--
ratings that the FHWA would be precluded from changing even if changes
were merited--may be forced out of business.
    Accordingly, the FHWA finds that there is good cause to waive prior
notice and comment for the limited purposes described above. For the
same reasons, the FHWA finds, pursuant to 5 U.S.C. 553(d)(3), that
there is good cause for making the interim final rule effective upon
publication. Nevertheless, because the FHWA is implementing the SFRM on
an emergency basis, it is doing so only until it believes the emergency
will

[[Page 28809]]

end, that is, until it expects to be able to promulgate a final rule
following its analysis of the comments received to this interim final
rule and the companion NPRM, which is contained elsewhere in today's
Federal Register. Therefore, the interim final rule will remain in
effect only until November 28, 1997. Comments received will be
carefully considered in evaluating whether any changes to this action
are required. Indeed, if, as a result of comment analysis, the FHWA
believes that a change in the interim final rule is warranted before
the expiration date, it will issue an immediate revision.

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

    The FHWA has determined this action is not a significant regulatory
action within the meaning of Executive Order 12866, but it is
significant within the meaning of Department of Transportation
regulatory policies and procedures because there is substantial public
interest in the safety fitness determination process. It is unlikely
that this regulatory action will have an annual effect on the economy
of $100 million or more. This final rule does not impose new
requirements upon the motor carrier industry nor alter the basic
outline of the August 16, 1991, interim final rule implementing the
provisions of 49 U.S.C. 5113. There should be no negative economic
impact resulting from this action because it merely continues in
effect, but on a smaller scale, a practice that has been followed for
the past eight years. This final rule imposes no costs on motor
carriers in addition to those assessed in the Regulatory Evaluation and
Regulatory Flexibility Analysis prepared in support of the 1988 final
rule. (The 1991 interim final rule amended the 1988 rule in ways that
the FHWA believes had minimal economic impact on motor carriers.)
Moreover, a negative impact on those carriers presently rated
unsatisfactory will be averted by allowing them the opportunity to
resume business upon an improvement to their rating.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that it would not have a significant economic impact
on a substantial number of small entities. The motor carriers
economically impacted by this rulemaking will be those who are rated as
unsatisfactory, and fail to take appropriate actions to have their
rating upgraded. In the past, relatively few small motor carriers had
been affected by the statutory consequences of an unsatisfactory safety
rating, and there is no reason to believe those impacts will increase
in any way by this action.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. These safety
requirements do not directly preempt any State law or regulation, and
no additional costs or burdens would be imposed on the States as a
result of this action. Furthermore, the State's ability to discharge
traditional State governmental functions will not be affected by this
rulemaking.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action will not have any effect on the quality of
the environment.

Regulatory Identification Number

    A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.

List of Subjects in 49 CFR Part 385

    Highways and roads, Motor carriers, Motor vehicle safety, and
Safety fitness procedures.

    Issued on: May 21, 1997.
Jane F. Garvey,
Acting Federal Highway Administrator.

    In consideration of the foregoing, the FHWA amends title 49, Code
of Federal Regulations, Chapter III, Part 385, as follows:

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation for part 385 continues to read as:

    Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144,
31502; and 49 CFR 1.48.

Sec. 385.9  [Amended]

    2. Section 385.9 is amended by designating the current undesignated
text as paragraph (a), and by adding a paragraph (b) to read as
follows:

Sec. 385.9  Determination of a safety rating.

    (a) * * *
    (b) Unless otherwise specifically provided in this chapter, a
safety rating will be issued to a motor carrier within 30 days
following the completion of a compliance review.
    3. Part 385 is amended by designating the existing appendix as
Appendix A and adding Appendix B to read as follows:

Appendix B to Part 385--Safety Rating Process

    Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C.
31144) directed the Secretary of Transportation to establish a
procedure to determine the safety fitness of owners and operators of
commercial motor vehicles operating in interstate or foreign
commerce. The Secretary, in turn, delegated this responsibility to
the Federal Highway Administration (FHWA).
    As directed, FHWA promulgated a safety fitness regulation,
Safety Fitness Procedures, which established a procedure to
determine the safety fitness of motor carriers through the
assignment of safety ratings and established a safety fitness
standard which a motor carrier must meet to obtain a satisfactory
safety rating.
    To meet the safety fitness standard, a motor carrier must
demonstrate to FHWA that it has adequate safety management controls
in place which function effectively to ensure acceptable compliance
with the applicable safety requirements. A ``safety fitness rating
methodology'' (SFRM) was developed by FHWA, which uses data from
onsite reviews to rate motor carriers.
    The safety rating process developed by FHWA's Office of Motor
Carriers is used to:
    1. Evaluate safety fitness and assign one of three safety
ratings (satisfactory, conditional or unsatisfactory) to motor
carriers operating in interstate commerce. This process conforms
with 49 CFR 385.5--Safety fitness standard and Sec. 385.7--Factors
to be considered in determining a safety rating.
    2. Identify motor carriers needing improvement in their
compliance with the

[[Page 28810]]

Federal Motor Carrier Safety Regulations (FMCSRs) and applicable
Hazardous Material Regulations (HMRs). These are carriers rated
unsatisfactory or conditional.

Source of Data for Rating Methodology

    The FHWA's rating process is built upon the operational tool
known as the compliance review (CR). This tool was developed to
assist Federal and State safety specialists in gathering pertinent
motor carrier compliance and accident information.
    The CR is an in-depth examination of a motor carrier's
operations and is used (1) to rate unrated motor carriers, (2) to
conduct a follow-up investigation on motor carriers rated
unsatisfactory or conditional as a result of a previous review, (3)
to investigate complaints, or (4) in response to a request by a
motor carrier to reevaluate its safety rating. Documents such as
those contained in driver qualification files, records of duty
status and vehicle maintenance records are thoroughly examined for
compliance with the FMCSRs and HMRs. Violations are cited on the CR
document. Performance based information, when available, is utilized
to evaluate the carrier's compliance with the vehicle regulations.
Recordable preventable accident information is also collected.

Converting CR Information Into a Safety Rating

    The FHWA gathers information through an in-depth examination of
the motor carrier's compliance with portions of the FMCSRs and HMRs
which have been identified as ``acute'' or ``critical'' regulations.
    Acute regulations are those so essential that noncompliance is
obvious and requires immediate corrective actions by a motor carrier
regardless of its overall safety posture. An example of an acute
regulation is Sec. 383.37(b)--Allowing, requiring, permitting, or
authorizing an employee with more than one Commercial Driver's
License (CDL) to operate a commercial motor vehicle. Noncompliance
with Sec. 383.37(b) is usually discovered when the motor carrier's
driver qualification file reflects that the motor carrier had
knowledge of a driver with more than one CDL, and still permitted
the driver to operate a commercial motor vehicle. If the motor
carrier did not have knowledge or could not reasonably be expected
to have knowledge, then a violation would not be cited.
    Critical regulations are those which relate directly to
management and/or operational controls. Noncompliance with those
regulations is indicative of a breakdown in a carrier's management
controls. An example of a critical regulation is Sec. 395.3(a)(1)--
Requiring or permitting a driver to drive more than 10 hours.
    The list of the acute and critical regulations used in
determining safety ratings is provided at the end of this document.
    Noncompliance with acute regulations and patterns of
noncompliance with critical regulations are quantitatively linked to
inadequate safety management controls and usually higher than
average rates of recordable preventable accidents. The FHWA has used
noncompliance with acute regulations and patterns of noncompliance
with critical regulations since 1989 to determine motor carriers'
adherence to the Sec. 385.5--Safety fitness standard. Compliance
with the regulatory factors, (1) [Parts 387, & 390]; (2) [Parts 382,
383 & 391]; (3) [Parts 392 & 395]; (4) [Parts 393 & 396, when there
are less than three vehicle inspections in the last 12 months to
evaluate]; and (5) [Parts 397, 171, 177 & 180], will be evaluated as
follows:
    For each instance of noncompliance with an acute regulation or
each pattern of noncompliance with a critical regulation documented
during the CR, one point will be assessed. A pattern is more than
one violation. When large numbers of documents are reviewed the
number of violations required to meet a pattern is equal to at least
10 percent of those examined.
    However, each pattern of noncompliance with a critical
regulation relative to Part 395, Hours of Service of Drivers, will
be assessed two points.

Vehicle Factor

    When there are a combination of three or more inspections
recorded in the Motor Carrier Management Information System (MCMIS)
during the twelve months prior to the CR or performed at the time of
the review, the Vehicle Factor (Parts 393 & 396) will be evaluated
on the basis of the Out-of-Service (OOS) rate and noncompliance with
acute regulations and/or a pattern of noncompliance with critical
regulations. The results of the review of the OOS rate will affect
the Vehicle Factor rating as follows:
    1. If a motor carrier has three or more roadside vehicle
inspections in the twelve months prior to the carrier review, or
three vehicles inspected at the time of the review, or a combination
of the two totaling three or more, and the vehicle OOS rate is 34%
or greater, the initial factor rating will be conditional. The
requirements of Part 396--Inspection, Repair, and Maintenance--will
be examined during each review. The results of the examination could
lower the factor rating to unsatisfactory if noncompliance with an
acute regulation or a pattern of noncompliance with a critical
regulation is discovered. If the examination of Part 396
requirements reveals no such problems with the systems the motor
carrier is required to maintain for compliance, the Vehicle Factor
remains conditional.
    2. If a carrier's vehicle OOS rate is less than 34%, the initial
factor rating will be satisfactory. If noncompliance with an acute
regulation or a pattern of noncompliance with a critical regulation
is discovered during the examination of Part 396 requirements, the
factor rating will be lowered to conditional. If the examination of
Part 396 requirements reveals no such problems with the systems the
motor carrier is required to maintain for compliance, the Vehicle
Factor remains satisfactory.
    Nearly two million vehicle inspections occur on the roadside
each year. This vehicle inspection information is retained in the
MCMIS and is integral to evaluating motor carriers' ability to
successfully maintain their vehicles. Since many of the roadside
inspections are targeted to visibly defective vehicles and since
there are a limited number of inspections for many motor carriers,
the use of that data is limited. Each CR will continue to have the
requirements of Part 396--Inspection, Repair, and Maintenance
reviewed as indicated by the above explanation.

Accident Factor

    In addition to the five regulatory rating factors, a sixth
factor is included in the process to address the accident history of
the motor carrier. This factor is the recordable preventable
accident rate which the carrier has experienced during the past 12
months. Recordable preventable accident means an accident that (1)
Involves a commercial motor vehicle; (2) that meets the definition
of an accident in Sec. 390.5; and (3) that could have been averted
but for an act, or failure to act, by the motor carrier or driver.
The sixth factor is assigned a rating based on the carrier's
recordable preventable accident rate compared to the national
accident rate distribution.
    To determine this national distribution, recordable preventable
accidents per million miles were computed for each CR performed in a
year. Most of these carriers (over 50%) had no recordable accidents.
The national average for all carriers reviewed in 1988 was 0.46 per
million miles; in 1996, 0.50 per million miles. From these data, the
percent of all carriers below or above any proposed accident per
million mile breakpoint could be established. The breakpoints shown
below were determined from consideration of both the national
average and the percentage of carriers below and above alternative
breakpoints, i.e.:
    The Recordable Preventable Accident Rating Scale (total
recordable preventable accidents divided by total mileage times 1
million) is:

Satisfactory=less than .3
Conditional=0.3 to 1.0
Unsatisfactory=greater than 1.0

Exceptions to the Recordable Preventable Accident Rating Scale

    Single Accident Exception: The accident factor excludes the
accident rates for all motor carriers that have only one recordable
preventable accident. One accident occurring in 12 months is too
isolated an occurrence to allow it to impact the accident factor.
    Urban Carriers Exception: Experience has shown that urban
carriers, those motor carriers operating entirely within a radius of
less than a 100 air miles (normally in urban areas) have a higher
exposure to accident situations because of their environment and
normally have higher accident rates. Therefore, the rating does not
become unsatisfactory for an urban carrier until it exceeds the 2.0
recordable preventable accident rate per million miles.
    Small Carrier Exception: Accident rates for small carriers
(fewer than 20 drivers) vary to a great extent from one year to the
next. Therefore, the lowest ``accident factor'' rating assigned to a
small carrier is conditional.
    The Factor rating is determined by the following table.

[[Page 28811]]

         Factor #6.--Recordable Preventable Accident Rate Table
------------------------------------------------------------------------
                                                         Rating: urban
    Calculated accident rate            Rating           carriers only
------------------------------------------------------------------------
Less than .3....................  Satisfactory......  Satisfactory.
0.3 to 1.0......................  Conditional.......  Conditional.
Greater than 1.0 to 2.0.........  Unsatisfactory....  Conditional.
Greater than 2.0................  Unsatisfactory....  Unsatisfactory.
------------------------------------------------------------------------

Factor Ratings

    In the methodology, parts of the FMCSRs and the HMRs having
similar characteristics are combined together into five regulatory
areas called ``factors.''
    The following table shows the five regulatory factors, parts of
the FMCSRs and HMRs associated with each factor, and the accident
factor.

FACTORS

Factor 1--General=Parts 387 & 390
Factor 2--Driver=Parts 382, 383 & 391
Factor 3--Operational=Parts 392 & 395
Factor 4--Vehicle=Parts 393 & 396
Factor 5--Haz. Mat=Parts 397, 171, 177 & 180
Factor 6--Accident Factor=Recordable Preventable Rate

Factor Ratings are determined as follows:
``Satisfactory''--if the acute and/or critical=0 points
``Conditional''--if the acute and/or critical=1 point
``Unsatisfactory''--if the acute and/or critical=2 or more points

Safety Rating

    The ratings for the five factors, along with the recordable
preventable accident rate for the 12 months prior to the review, are
then entered into a rating table which establishes the motor
carrier's safety rating.
    The FHWA has developed a computerized rating formula for
assessing the information obtained from the CR document and is using
that formula in assigning a safety rating.

                    Motor Carrier Safety Rating Table
------------------------------------------------------------------------
                   Factor ratings
-----------------------------------------------------   Overall safety
         Unsatisfactory               Conditional           rating
------------------------------------------------------------------------
0...............................  2 or less.........  Satisfactory.
0...............................  more than 2.......  Conditional.
1...............................  2 or less.........  Conditional.
1...............................  more than 2.......  Unsatisfactory.
2 or more.......................  0 or more.........  Unsatisfactory.
------------------------------------------------------------------------

Anticipated Safety Rating

    The anticipated (emphasis added) safety rating will appear on
the CR.
    The following appropriate information will appear after the last
entry on the CR, MCS-151, Part B.
    ``It is anticipated the official safety rating from Washington,
D.C. will be SATISFACTORY.''

Or

    ``It is anticipated the official safety rating from Washington,
D.C. will be CONDITIONAL. The safety rating will become effective
thirty days from the date of the CR.''

Or

    ``It is anticipated the official safety rating from Washington,
D.C., will be UNSATISFACTORY. The safety rating will become
effective thirty days from the date of the CR.''

Assignment of Rating/Motor Carrier Notification

    When the official rating is determined in Washington, D.C., the
FHWA notifies the motor carrier in writing of its safety rating as
prescribed in Sec. 385.11. An anticipated safety rating which is
higher than the existing rating becomes effective as soon as the
official safety rating from Washington, D.C. is issued. Notification
of a conditional or unsatisfactory rating includes a list of those
Parts of the regulations, or recordable preventable accident rate,
for which corrective actions must be taken by the motor carrier to
improve its overall safety performance.

Motor Carrier Procedural Rights

    Under Secs. 385.15 and 385.17, motor carriers have the right to
petition for a review of their ratings if there are factual or
procedural disputes, and to request another review after corrective
actions have been taken. They are the procedural avenues a motor
carrier, which believes its safety rating to be in error, may use,
and the means to request another review after corrective action has
been taken.

Conclusion

    The FHWA believes this ``safety rating methodology'' is a
reasonable approach for assigning a safety rating which best
describes the current safety fitness posture of a motor carrier as
required by the safety fitness regulations (Sec. 385.9).
    Improved compliance with the regulations leads to an improved
rating, which in turn increases safety. This increased safety is our
regulatory goal.

List of Acute and Critical Regulations

Sec. 382.115(c)  Failing to implement an alcohol and/or controlled
substance testing program. (acute)
Sec. 382.201  Using a driver who has an alcohol concentration of
0.04 or greater. (acute)
Sec. 382.211  Using a driver who has refused to submit to an alcohol
controlled substances test required under Part 382. (acute)
Sec. 382.213(b)  Using a driver who has used a controlled substance.
(acute)
Sec. 382.215  Using a driver who has tested positive for a
controlled substance. (acute)
Sec. 382.301(a)  Failing to require driver to undergo pre-employment
controlled substance testing. (critical)
Sec. 382.303(a)  Failing to conduct post accident testing on driver
for alcohol and/or controlled substances. (critical)
Sec. 382.305(a)  Failing to implement a random controlled substances
and/or an alcohol testing program. (acute)
Sec. 382.305(b)(1)  Failing to conduct random alcohol testing at an
annual rate of not less than 25 percent of the average number of
driver positions. (critical)
Sec. 382.305(b)(2)  Failing to conduct random controlled substances
testing at an annual rate of not less than 50 percent of the average
number of driver positions. (critical)
Sec. 382.309(a)  Using a driver who has not undergone a return-to-
duty alcohol test with a result indicating an alcohol concentration
of less than 0.02. (acute)
Sec. 382.309(b)  Using a driver who has not undergone a return-to-
duty controlled substances test with a result indicating a verified
negative result for controlled substances. (acute)
Sec. 382.503  Driver performing safety sensitive function, after
engaging in conduct prohibited by Subpart B, without being evaluated
by substance abuse professional, as required by Sec. 382.605.
(critical)
Sec. 382.505(a)  Using a driver within 24 hours after being found to
have an alcohol concentration of 0.02 or greater but less than 0.04.
(acute)
Sec. 382.605(c)(1)  Using a driver who has not undergone a return-
to-duty alcohol test with a result indicating an alcohol
concentration of less than .02 or with verified negative test
result, after engaging in conduct prohibited by Part 382, Subpart B.
(acute)
Sec. 382.605(c)(2)(ii)  Failing to subject a driver who has been
identified as needing assistance to at least six unannounced follow-
up alcohol and controlled substance tests in the first 12 months
following the driver's return to duty. (critical)
Sec. 383.23(a)  Operating a commercial motor vehicle without a valid
commercial driver's license. (critical)
Sec. 383.37(a)  Allowing, requiring, permitting, or authorizing an
employee with a Commercial Driver's License which is suspended,
revoked, or canceled by a state or who is disqualified to operate a
commercial motor vehicle. (acute)
Sec. 383.37(b)  Allowing, requiring, permitting, or authorizing an
employee with more than one Commercial Driver's License to operate a
commercial motor vehicle. (acute)
Sec. 383.51(a)  Allowing, requiring, permitting, or authorizing a
driver to drive who is disqualified to drive a commercial motor
vehicle. (acute)
Sec. 387.7(a)  Operating a motor vehicle without having in effect
the required minimum levels of financial responsibility coverage.
(acute)
Sec. 387.7(d)  Failing to maintain at principal place of business
required proof of financial responsibility. (critical)
Sec. 387.31(a)  Operating a passenger carrying vehicle without
having in effect the required minimum levels of financial
responsibility. (acute)
Sec. 387.31(d)  Failing to maintain at principal place of business
required proof of financial responsibility for passenger vehicles.
(critical)

[[Page 28812]]

Sec. 390.15(b)(2)  Failing to maintain copies of all accident
reports required by State or other governmental entities or
insurers. (critical)
Sec. 390.35  Making, or causing to make fraudulent or intentionally
false statements or records and/or reproducing fraudulent records.
(acute)
Sec. 391.11(a)/391.95  Using an unqualified driver, a driver who has
tested positive for controlled substances, or refused to be tested
as required. (acute)
Sec. 391.11(b)(6)  Using a physically unqualified driver. (acute)
Sec. 391.15(a)  Using a disqualified driver. (acute)
Sec. 391.45(a)  Using a driver not medically examined and certified.
(critical)
Sec. 391.45(b)  Using a driver not medically examined and certified
each 24 months. (critical)
Sec. 391.51(a)  Failing to maintain driver qualification file on
each driver employed. (critical)
Sec. 391.51(b)(1)  Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(1)  Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(3)  Failing to maintain inquiries into driver's
driving record in driver's qualification file. (critical)
Sec. 391.51(d)(1)  Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.87(f)(5)  Failing to retain in the driver's qualification
file test finding, either ``Negative'' and, if ``Positive'', the
controlled substances identified. (critical)
Sec. 391.93(a)  Failing to implement a controlled substances testing
program. (acute)
Sec. 391.99(a)  Failing to require a driver to be tested for the use
of controlled substances, upon reasonable cause. (acute)
Sec. 391.103(a)  Failing to require a driver-applicant whom the
motor carrier intends to hire or use to be tested for the use of
controlled substances as a pre-qualification condition. (critical)
Sec. 391.109(a)  Failing to conduct controlled substance testing at
a 50% annualized rate. (critical)
Sec. 391.115(c)  Failing to ensure post-accident controlled
substances testing is conducted and conforms with 49 CFR Part 40.
(critical)
Sec. 392.2  Operating a motor vehicle not in accordance with the
laws, ordinances, and regulations of the jurisdiction in which it is
being operated. (critical)
Sec. 392.4(b)  Requiring or permitting a driver to drive while under
the influence of, or in possession of, a narcotic drug, amphetamine,
or any other substance capable of rendering the driver incapable of
safely operating a motor vehicle. (acute)
Sec. 392.5(b)(1)  Requiring or permitting a driver to drive a motor
vehicle while under the influence of, or in possession of, an
intoxicating beverage. (acute)
Sec. 392.5(b)(2)  Requiring or permitting a driver who has consumed
an intoxicating beverage within 4 hours to operate a motor vehicle.
(acute)
Sec. 392.6  Scheduling a run which would necessitate the vehicle
being operated at speeds in excess of those prescribed. (critical)
Sec. 392.9(a)(1)  Requiring or permitting a driver to drive without
the vehicle's cargo being properly distributed and adequately
secured. (critical)
Sec. 395.1(i)(1)(i)  Requiring or permitting a driver to drive more
than 15 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(ii)  Requiring or permitting a driver to drive
after having been on duty 20 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iii)  Requiring or permitting driver to drive after
having been on duty more than 70 hours in 7 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iv)  Requiring or permitting driver to drive after
having been on duty more than 80 hours in 8 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.3(a)(1)  Requiring or permitting driver to drive more than
10 hours. (critical)
Sec. 395.3(a)(2)  Requiring or permitting driver to drive after
having been on duty 15 hours. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having
been on duty more than 60 hours in 7 consecutive days. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having
been on duty more than 70 hours in 8 consecutive days. (critical)
Sec. 395.8(a)  Failing to require driver to make a record of duty
status. (critical)
Sec. 395.8(e)  False reports of records of duty status. (critical)
Sec. 395.8(l)  Failing to require driver to forward within 13 days
of completion, the original of the record of duty status. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's record of duty status
for 6 months. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's records of duty
status supporting documents for 6 months. (critical)
Sec. 396.3(b)  Failing to keep minimum records of inspection and
vehicle maintenance. (critical)
Sec. 396.9(c)(2)  Requiring or permitting the operation of a motor
vehicle declared ``out-of-service'' before repairs were made.
(acute)
Sec. 396.11(a)  Failing to require driver to prepare driver vehicle
inspection report. (critical)
Sec. 396.11(c)  Failing to correct Out-of-Service defects listed by
driver in a driver vehicle inspection report. (acute)
Sec. 396.17(a)  Using a commercial motor vehicle not periodically
inspected. (critical)
Sec. 396.17(g)  Failing to promptly repair parts and accessories not
meeting minimum periodic inspection standards. (acute)
Sec. 397.5(a)  Failing to ensure a motor vehicle containing Class A
or B explosives (Class 1.1, 1.2, or 1.3) is attended at all times by
its driver or a qualified representative. (acute)
Sec. 397.7(a)(1)  Parking a motor vehicle containing Class A or B
explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of
highway. (critical)
Sec. 397.7(b)  Parking a motor vehicle containing hazardous
material(s) within 5 feet of traveled portion of highway or street.
(critical)
Sec. 397.13(a)  Permitting a person to smoke or carry a lighted
cigarette, cigar or pipe within 25 feet of a motor vehicle
containing explosives, oxidizing materials, or flammable materials.
(critical)
Sec. 397.19(a)  Failing to furnish driver of motor vehicle
transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a
copy of the rules of Part 397 and/or emergency response
instructions. (critical)
Sec. 397.67(d)  Requiring or permitting the operation of a motor
vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material
that is not accompanied by a written route plan. (critical)
Sec. 171.15  Carrier failing to give immediate telephone notice of
an incident involving hazardous materials. (critical)
Sec. 171.16  Carrier failing to make a written report of an incident
involving hazardous materials. (critical)
Sec. 177.800(a)  Failing to instruct a category of employees in
hazardous materials regulations. (critical)
Sec. 177.817(a))  Transporting a shipment of hazardous materials not
accompanied by a properly prepared shipping paper. (critical)
Sec. 177.817(e)  Failing to maintain proper accessibility of
shipping papers. (critical)
Sec. 177.823(a)  Moving a transport vehicle containing hazardous
material that is not properly marked or placarded. (critical)
Sec. 177.841(e)  Transporting a package bearing a poison label in
the same transport vehicle with material marked or known to be
foodstuff, feed, or any edible material intended for consumption by
humans or animals. (acute)
Sec. 180.407(a)  Transporting a shipment of hazardous material in
cargo tank that has not been inspected or retested in accordance
with Sec. 180.407. (critical)
Sec. 180.407(c)  Failing to periodically test and inspect a cargo
tank. (critical)
Sec. 180.415  Failing to mark a cargo tank which passed an
inspection or test required by Sec. 180.407. (critical)
Sec. 180.417(a)(1)  Failing to retain cargo tank manufacturer's data
report certificate and related papers, as required. (critical)
Sec. 180.417(a)(2)  Failing to retain copies of cargo tank
manufacturer's certificate and related papers (or alternative
report) as required. (critical)

[FR Doc. 97-13874 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-22-P